blueprint for a new confederation_john knutsen_1992
TRANSCRIPT
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AS THE PEOPLEWANT IT
Blueprint for a new confederation
John F. Knutsen
REMSKRITTSPARTIETS UTREDNINGS-INSTITUTT
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FUI-Report No. 7As the People Want It: Blueprint for a new confederation
John F. Knutsen 1992
All rights reserved
ISBN 82-7500-007-6
ISSN 0802-359X
Fremskrittspartiets Utrednings-institutt is an independent research institute dedi-cated to political and economic research and analysis.
FUI publications do not necessarily reflect the opinions of the Fremskrittspartiets
Utredningsinstitutt or those of any particular political organization, but is the soleresponsibility of the author.
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AS THE PEOPLE WANT IT
I GENERAL PRINCIPLES
II SECTION BYSECTION
COMMENTARY
III THE CONSTITUTION
IV APPENDICES, REFERENCES
AND INDEX
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Table of contents
Acknowledgements.......................................................................... ix
I GENERAL PRINCIPLES ........................................................................ 1
1 Introduction ......................................................................... 3
1.1 Purpose of text
1.2 How the book is organized
1.3 Summary
2 The structure of the proposed constitution........................5
2.1 Three foundations
2.2 Confederate structure
2.3 Two parts
2.4 Summary
3 Popular sovereignty...........................................................12
3.1 Introduction3.2 A contemporary definition of popular
sovereignty3.3 Popular sovereignty and direct
democracy
3.4 Summary4 Direct democracy .............................................................. 20
4.1 Proposed constitution's use of direct
democracy4.2 Principal features of direct democracy
4.3 Summary
5 The benefits of local control............................................ 31
5.1 Better results/Better resource utilization5.2 Devolution and citizen satisfaction, an
example5.3 Summary
6 Devolved popular sovereignty ..........................................38
6.1 Introduction
iii
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6.2 Devolved popular sovereignty and
individual liberty
6.3 Practical issues related to the application
of devolved popular sovereignty
6.4 Summary
7 Inter-governmental competition........................................46
7.1 Introduction7.2 Vertical competition and independent
action7.3 Horizontal competition
7.4 Summary
8 Confederate taxation ..........................................................53
8.1 Proposed solution; Competitive and
restraining components
8.2 Disadvantages oftraditional measuresfor raising public revenue
8.3 Additional comments on fiscal restraint
8.4 Summary
9 Confederate institutions .....................................................59
9.1 Introduction9.2 Bill ofRights and General provisions of
part two
9.3 Summary
II SECTION BY SECTION COMMENTARY ...........................................65
1 State Powers...................................................................... 67
1.1 Sovereignty
1.2 Defense
1.3 Secession1.4 Superior law
1.5 State assumption ofa confederate service
1.6 Treaty powers1.7 Regional bodies
1.8 The constitutional tribunal
1.9 Amendments to part one (the compact)
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2 Rights of the state citizens ............................................... 742.1 Citizenship
2.2 Democratic government
2.3 Freedom of movement
2.4 Privileges and immunities2.5 Self-determination
2.6 General comments on the constitution's
chapter 2
3 Confederate powers.......................................................... 833.1 Sovereignty
3.2 The right of making proposals
3.3 Judicial powers
3.4 Legislative powers
3.5 The right of enforcing and defending the
constitution4 Definitions and general provisions ...................................88
4.1 Majority of votes cast4.2 Double majorities
4.3 Conflicting double majorities
4.4 Non-contested real estate4.5 Precedence
5 The President.................................................................... 905.1 Executive power
5.2 Prerogatives
5.3 Term and election5.4 Candidates
5.5 Removal
6 The Congress.....................................................................956.1 Legislative powers
6.2 The powers of Congress6.3 The Senate
6.4 The House of Representatives
7 The Supreme Court......................................................... 1007.1 Judicial powers7.2 Judicial review
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7.3 Original jurisdiction and right of appeal
8 The People....................................................................... 103
8.1 Requisitioning
8.2 The Initiative
8.3 The Referendum
8.4 The Recall8.5 Qualifying Initiatives, Referendums and
Recalls8.6 The Constitutional Initiative
8.7 Confederate and state initiated direct
legislation
9 Bill of Rights....................................................................108
9.1 Applicability
9.2 Non-discrimination9.3 Voting age
9.4 Ex post facto law9.5 Religious freedom
9.6 Freedom of speech
9.7 Right of assembly and association
9.8 Habeas corpus
9.9 Privacy, searches, seizures, and
interceptions9.10 Due process
9.11 Criminal prosecutions
9.12 Jury
9.13 Excessive bail9.14 Taking of property
9.15 Speedy decisions
9.16 Equal protection
9.17 Monopolies9.18 Rights retained by the people
10 General Provisions of part two.....................................120
10.1 Election day10.2 Limit on other office of profit
10.3 Compensation
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Acknowledgements
This report owes much of its existence to Sigmund Knag formerlyof the Fremskrittspartiets Utrednings-institutt (Progress Party
Research Institute), his unflagging support, patience, persistence and
interest.
Sigmund became interested in my views after reading one of my
earlier articles on direct democracy. He continued asking me
questions, and out of these questions grew the proposed constitution
and a more coherent understanding of government.
Sigmund and I also developed a draft for a new law on localgovernment. This draft formed the initial intellectual basis for the
proposed constitution. Sigmund was also instrumental in pointing out
to me some of the factual material included in the report, e.g.material related to educational results, degree of centralization in
various countries. etc.
I would also like to thank Mr Jan Arild Snoen the director of the
Progress Party Research Institute for having this publication appearunder the FUI label.
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I GENERAL PRINCIPLES
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4 General Principles
the proposed governmental structure. Chapter 2 provides a summary
of the essential points. Supplemental material is set in small type.
Part Il SECTION BY SECTION COMMENTARY is a reference sectionfor those who want to study the constitutional proposal in detail. Par
III contains the actual text of the proposed constitution. Part IVcontains marginal notes, references to other literature and an index.
1.3 Summary
The purpose of this report is to present a new model for governmen-tal structures based on the interests of the citizens in their individual
group and collective capacities.
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Chapter 2. The structure of the proposed constitution 5
2 The structure of the proposed constitu-tion2.1 Three foundations
The proposed constitution has three fundamental ideas:
Devolved popular sovereignty
Inter- and intra-governmental competition Just processes for arriving at and enforcing decisions
The first foundation is compound. Devolved popular sovereignty
requires an analysis both of devolution, sovereignty and the term"popular". The second foundation is at least partially dependent on
the first, as competition can take place only if there are multiple
independent decision makers, which is easiest made possible by
devolving some power away from the center. Thirdly decisions based
on devolved popular sovereignty and competitive procedures are alsojust processes for arriving at decisions and they ensure that govern-mental actions conform to the interests of ordinary people.
Of course, in the actual text of the proposed constitution several of
these fundamental ideas may influence the phrasing of any one par-ticular section.
2.2Confederate structure
The Constitution is built on a confederate structure where state law
is superior law, and the individual states retain their sovereignty andin
dependence, including the right to secede. (See below for defini-
tions of federations and confederations.)
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6 General Principles
This structure encourages competition between governmental units
and ensures that government continues to obey the wishes of the
citizens.
The central government's task is to take care of the common good
as defined by the citizens in their collective capacities, ease co-operation, provide the states and the citizens with alternate solutions
to their concerns, and provide cohesion and guidance. But if the
people of a member state reject confederate legislative proposals, it
has no power to compel enforcement. Its coercive powers are limited
to only those powers needed to ensure that individuals in theircollective, group or individual capacities, have an opportunity to
choose.
Confederations
The traditional definition of a confederation is a body whose laws are bindingonly on
sovereigns. This means that confederate legislation has to be transformed into internal
legislation in each member state to be binding on that state's citizens and court system.
As Figure 1 shows, the paths of control in a confederation are top-down, but if a state
fails to carry out confederate instructions, the confederation may take action only
against state authorities. As happened during the Gulf war of 1991, it is common for
state authorities in these circumstances to protect themselves behind a wall of ordinary
people'
. This makes the people rather than the responsible state leader suffer the
consequences of illegitimate state action. As central decisions do not extend directly
to individuals, traditional confederations are inherently unstable. Either they fall apart,
with confederate instructions becoming no more than polite advice, or they evolve
into federations.
`The United Nations is in fact a confederation, and the Iraqi
authorities were probably legally bound to obey U.N. resolutions.
However, legal technicalitites turned out to be of minor importance asthe Iraqi leaders hid and continues to hide behind a shield of innocent
civilians and army personell.
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Chapter 2. The structure of the proposed constitution 7
Federations
Contrary to traditional
confederate legislation,
federal legislation may
extend rights and obliga-tions directly on in-dividuals in each mem-
ber state. (See
Figure 2.) Obviously it
is much easier to coerce
individuals than it is to
coerce state authorities
that have the full powers
of the state at their dis-
posal for protection.Thus the central powers
tend to be much more
important within a fede-
ration than within a con-
federation.
If state and federal laws
conflict, as they in-
variably do eventually, it
is the central body'slaws and legal system that prevails. Central law is superior law, and the paths of
control are top-down.
Since federal law prevails with respect to each individual, there is no need for the
central government to instruct state governments, and normally it doesn't have this
authority.
Contemporary federations and confederations
The traditional definition of a federation includes the United States of America,
Canada, Australia, Germany and Switzerland. Perhaps surprisingly, the European
Community ends up being a federation as well.
There are three forms of Community law: A) Regulations; which automatically
become law for everyone living in Community countries, B) Decisions; whichau
tomatically become law for particular bodies or persons, and C) Directives; which
order member states to make laws of their own to give effect to community policies( Letwin , page 14). It follows that the European Community can only be classified as
Figure 1 Traditional confederation
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8 General Principles
a confederation if it
relies exclusively on
Directives. Whenever
the Community issues
Regulations or Deci-sions, it acts as a federa-
tion. The essential fed-
eral nature of the Com-
munity is independent of
the fact that the scope of
the Community's powers
as they exist today, is
limited. The Community
has the power to legis-late only on certaineconomic issues, trade,
agriculture etc.. But
within the Community's
limited domain, within
that range where it can
issue Regulations or
Decisions, it acts as a
federation.
Toward a
new confederation
This book's definition of a confederation differs somewhat from the
traditional definition. Afederation is a multi-governmental entity
where central law is superior law, while a confederation is a multi-
governmental entity where local law (state law) is superior law.
This new definition allows confederations to act directly on in-dividual citizens, and thus provide the level of cohesion now offered
only by federations, and it gives the term confederation a more
meaningful content.
Important features of new confederate definition
The new definition preserves the fuzzy popular notion that confederations are "looser"
structures than federations; more based on cooperation than coercion.
Figure 2 Traditional federation
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Chapter 2. The structure of the proposed constitution 9
From the local-law-is-superior principle it follows that interaction within a con-
federation has to rely on voluntary cooperation between the member states, while a
federation ultimately relies on coercion.
As seen by individual citizens, the traditional and the new definition of a confederationare related. If confederate law can act only on sovereigns and has to be transformed
into local law to act on individuals, - then from each citizen's point of view, state law
is superior law.
The proposed definition is also consistent with the prior classification of the United
States of America, Canada, Australia, Germany, Switzerland and the European
Community as federations.
It is the force to coerce and compel, rather than propose and persuade that distinguish-
es the new federations from the new confederations. A confederation relies on bottom-
up paths of control while a federation relies on top-down paths of control.
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10 General Principles
Table I Summary comparison of traditional and reformed con-
federations
Traditional confedera -tion/federation
Reformed confederation
Citizens may not instruct
either state or con-
federate/federate aut -horities
State citizens (as a group)
may instruct state aut -horitiesConfederate citizens (as agroup) may instruct cen -tral authority
Confederate/Federate lawis superior law
State law is superior law
State borders are fixed ordetermined by central
authority
State borders are deter-mined by those directly
affected
Structure is based on
centralized commandpolitics
Structure is based on
voluntary cooperation and
popular sovereignty
Cohesion is provided by
central authority's powerto coerce and compel.
Cohesion is provided by
the central authority'spower to propose and
persuade.
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Chapter 2. The structure of the proposed constitution 11
2.3 Two parts
The Constitution itself is divided into two parts: Chapters 1 through
4 specify the powers of the three contracting parties; the states, the
citizens and the Confederation in relation to each other, and Chapters
5 through 10 specify how the confederate government is to beorganized, and put limitations on the powers of the differentinstitutions within the confederate government.
The purpose of this division is to allow the confederate government
to organize itself as it pleases and in a way that proves convenient,but prevent these institutional changes within the central government
from encroaching on the sovereignty of the states. For similarreasons there are no references in the first part to institutions in the
second part, neither are there references the other way, except that
certain actions by the confederate government naturally presupposea legal basis in Chapter 3.
Chapters 1 through 4 of the Constitution are also superior to
Chapters 5 through 10.
2.4Summary
The proposed constitutional model is built on three fundamentalideas:
Devolved popular sovereignty Inter- and infra-governmental competition Just processes for arriving at and enforcing decisions
The new Confederation has extensive powers to persuade andpropose, but limited powers to coerce. Contrary to present federa-tions and confederations the structure is voluntary.
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1 2 General Principles
3 Popular sovereignty
3.1 Introduction
Historical background
The modern meaning of sovereignty was introduced by Jean Bodin in 1576. According
to the New Columbia Encyclopedia, sovereignty is the supreme authority in a political
community " .
The origin of popular sovereignty, on the other hand, goes most directly back to whatis called the social contract school of the mid 1600s to the mid 1700s. Popular
sovereignty is the notion that no law or rule is legitimate unless it rests directly or
indirectly on the consent of the individuals concerned.
Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean-Jacques Rousseau
(1712-1778) were the most important members of the social contract school . They
all postulated that the nature of society, whatever its origins, was a contractual
arrangement between its members. The reason men entered society was to protect
themselves against the dangers of the "state of nature". But, their theories differed
markedly in other respects.
Hobbes claimed that the first and only task of political society was to name an
individual or a group of individuals as sovereign. This sovereign would then have
absolute power, and each citizen would owe him absolute obedience. Hobbes concept
meant that popular sovereignty only existed momentarily. In modern terms we might
say that it consisted of "one man, one vote, once".
Locke as well, claimed that the social contract was permanent and irrevocable, but the
legislativewas only empowered to legislate for the public good. If this trust was
violated, the people retained the power to replace the legislative with a new legislative.
It is unclear whether Locke deposited sovereignty in the people or in the legislative.
Though he was less absolute than Hobbes, he clearly didn't intend popular intervention
to be commonplace. If anything, Locke ' s vision is probably closer to the British viewof Parliamentary sovereignty.
Rousseau claimed that laws enacted by the legislature could only address the common
good of the society's members and they could only extend the same rights or
obligations to all citizens. Rousseau, however, didn't elaborate on what would happen
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Chapter 3. Popular sovereignty 13
if these conditions were violated, but he did propose mechanisms to find out what the
"general will" was and he did see the legislative powers as vested in the people itself.
Thus there was a development in political theory from the very limited role played by
the people in Hobbes' theories, to the more significant popular sovereignty of
Rousseau.
Rule by consent in other fields of thought
Ideas and thoughts legitimizing the rule of consent also may be found in many
religious tracts. The Bible sums it up quite nicely and again not coincidentally : "Love
your neighbor as yourself." (Mark 12, 31), and "And as you would like that men
would do to you, do exactly so to them." (Luke 6,31). In other words; since you like
to control your life, let others control theirs. The implied promise is that the individual
and society will be happy and prosperous to the extent that this advice is followed andthe people is given the maximum amount of individual and group liberty and
sovereignty.
Contemporary psychologists as well, in their search for the sources of happiness and
depression, have found the same result. Happiness, confidence and success are closely
related to a belief in one's ability to influence one's own fate. Depression and failure
are related to a feeling of inability to control one's own life; to a feeling of being
controlled.
To most people these truths seem so evident that they need not be argued. But inpractical politics there is an enormous resistance to giving ordinary people the final
say.
3.2 A contemporary definition of popular sovereignty
According to the New Columbia Encyclopedia, sovereignty is "the
supreme authority in a political community". The sovereign is that
individual or group that has absolute power to make law. Theabsolute power to make law is also the power to make the rules by
which the other authorities operate. The chief characteristic of a
sovereign body is thus that it makes the decision making rules for
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14 General Principles
government'.
The termpopularsovereignty is supposed to mean that this ultimatepower belongs to the people, but what is the most common con-temporary interpretation? Most Western democracies claim to base
their government on popular sovereignty, but in reality the people
have little ultimate authority short of revolution. Most decisions,
even fundamental decisions, are left to the legislatures. It is usually
the legislature that controls the constitution, the most basic instru-ment of government, and the extent of popular authority is usually
at this body's discretion. Even where popular consent is required,
the legislature usually has the sole authority to propose amendments.In reality this means that sovereignty is most commonly placed in the
legislature. It is this body, rather than the people, that has the
ultimate power to make law.
On the other hand, in order for a government to be truly popularit
would have to provide the people with at least as much authority as
any other body, and in addition a right to overrule that body. In
practical terms this means that an updated definition of popularsovereignty has to rest on the people's ability to:
Adopt its own basic law or constitution
*P r o p o s e a n d a d o p t a m e n d m e n t s t o t h e b a s i c l a w o r
constitution
If the people have these powers, they may institute any other
changes they desire. If they don't have these powers, however, it isunclear how it can be legitimately said that the government rests on
the supreme authority of the people.
'This set of decision making rules, whether collected
in one or several documents, is that state's basic law or
constitution.
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Chapter 3. Popular sovereignty 15
3.3 Popular sovereignty and direct democracy
Direct democracy means that the people directly decide all issues,
instead of delegating decisions to representative bodies like nationallegislatures; while popular sovereignty means that the ultimate
political authority is deposited in the people. It follows that popularsovereignty and direct democracy are closely related, but they are
not exactly the same. Crudely simplified we may say that popular
sovereignty is political theory at a more basic level, while direct or
semi-direct democracy is its practical and pragmatic manifestation.Much of the discussion in the following chapters will therefor focus
on (semi)direct democracy, its implementation and effects.As an aside I might add that it is possible to have direct or semi-direct democracy
without popular sovereignty. Ordinary people may be allowed to make ordinary laws,
but barred from changing the constitution. Such a combination was proposed in the
United Kingdom around the turn of the century.
Similarly, it is possible to have popular sovereignty without direct democracy in its
purest form. This is the usual form of popular sovereignty; a combination of
representative bodies and ultimate popular authority. But it is not possible to envision
popular sovereignty without such a form of semi-direct democracy.
Semi-direct democracy is a combination of direct democracy and
representative (also called indirect) democracy. A semi-direct systemis characterized by the people having delegated legislative powers to
a parliament or other representative body, but having made thisdelegation revocable and limited. Besides the legislature there must
also be a mechanism allowing for the people to express its will
directly.
For reasons of simplicity the rest of the book also employs the term
direct democracy to describe the direct parts of a semi-directgovernmental system.
The proposed governmental system is a semi-direct democracy.
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16 General Principles
History of direct democracy in Europe
The history of popular sovereignty and direct legislation goes back a long time. It can
be found in some greek city states of antiquity, and among the germanic tribes onorthern Europe. At the time of the Greeks and the Romans, the northern European
lived in small groups in sparsely populated areas. In such societies, there are definit
limits to oppression. If people are dissatisfied, they simply gather in a little group t
move on to greener pastures elsewhere. This way of life naturally leads to an essentia
equality in fundamental political decisions. After all, these groups or tribes can only
be kept together by voluntary compact. Thus the nature of frontier society gave every
young able-bodied individual a stake in fundamental decisions.
Later, voting with your feet largely ceased being an option as the more fertile parts
of Europe became more densely populated and land became scarce. The emergenc
of agriculture as the dominant food source, reinforced the vulnerability of ordinary
people. In an open landscape, with a sedentary lifestyle it became harder to escap
tyrants and their professional fighting men. Over time this lack of effective
countermeasures led to the emergence and growth of feudal institutions.
In the less accessible parts of Scandinavia and Switzerland, however, repression wa
more difficult to enforce, and the local landsgemeinde or things survived for considerable period. The original landsgemeinde were general assemblies of all adulfree-men that met once or twice a year to resolve important issues. In Norway durin
the time of the vikings (around 1000 a.d . and even later) kings were still elected oapproved at the local direct assemblies, and usually there was more than oncontender. This multiplicity of choice acted as a brake on royal ambition. For a lon
time there was no real central government, and even after its creation, the geograph
cal conditions were such that only occasional supervision of local communities coul
be accomplished. Even if you did have a fall-out with the monarch, you could usual
escape to other viking communities in Iceland, Normandy, Ireland, England, th
Orkneys or the Baltics with impunity.
The regional representative assemblies assumed many powers of the earlier Norwegia
direct assemblies beginning about 1000 a.d . However, these representative assembliehad almost un-fettered legislative powers at least until 1152 when the first seriouattempts at national legal harmonization were made. The things or representativ
assemblies did survive until 1662, but their powers steadily eroded with the increasin
influence of the church, the dwindling number and professionalization of memberand the appointment by the king of an ever larger fraction of the total.
Even after the time of the Vikings, during the more powerful Danish-Norwegia
kings, central government enforcement was still difficult, and several tax collector
failed to return to the capital. On the continent or in the flat eastern part of Norway
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Chapter 3. Popular sovereignty 17
the king or the feudal lord could employ heavily armed professional soldiers on the
sedentary population. But heavy arms were of little help in Switzerland, Iceland or in
the Norwegian mountains with their ample opportunities for ambush and guerrilla war-
fare. Neither were there many fields to burn as the population to a large extent relied
on husbandry, fishing and hunting for subsistence.
Thus by the Middle Ages the democratic traditions of citizens' assemblies survived
only in Iceland, in parts of Norway, possibly in parts of Sweden, and in the original
Swiss cantons. Scandinavia eventually succumbed to absolutism, and direct democracy
survived only in Swiss towns and cantons.
In Switzerland, 1291 marked the establishment of a defensive league between the
original cantons of Uri, Schwyz and Unterwalden directed toward the feudal Hobs-burgs. Swiss history as well is filled with much strife even after this time. But theSwiss, contrary to the Scandinavians were never conquered and never ruled by
monarchs (excepting Napoleon).
It was the democratic traditions of Switzerland that later inspired Jean-Jacques
Rousseau. Rousseau's writings led to the adoption of the referendum in the French
Constitution of 1793, i.e. during the French Revolution. Though this Constitution
never came into operation, Napoleon used the referendum occasionally. It also led to
a revitalization in Switzerland itself.
In 1848, the new Swiss federal constitution gave the Swiss people the power todemand the complete revision of the Constitution through the election of what was in
effect a constitutional convention. In 1874 the Swiss used this power to force the
adoption of the legislative referendum (the right to approve or reject ordinary federallegislation). Later, the threat of another confrontation with the people led the
Parliament to propose and pass itself the constitutional initiative (approved 1891).
Direct democracy in the United States
The basis of the democratic traditions of the British colonies in North America is
similar to that in Europe. The North American colonies were far removed from the
hub of power. They were protected from royal interference by difficult communica-tions and sheer physical distance. In this environment of free-men evolved the NewEngland town meeting.
The town meeting is an assembly of all adults (originally all male adults) called every
year to decide important local issues.
As in Switzerland several centuries earlier, the Americans resented central taxation
and interference with what they perceived to be internal American affairs. As in
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18 General Principles
Switzerland, geography hampered the military response of the central power, and
eventually secured the freedom of the American people and the preservation of its
democratic traditions. Thus as early as 1778, the Massachusetts constitution was
adopted by referendum. But this was hardly an expression of popular sovereignty as
I have defined it. Rather it was the people vesting its ultimate authority in a newlegislature according to the Lockean vision. This becomes quite clear in the American
Declaration of Independence of July 4, 1776:
...."whenever any form of government becomes destructive of these ends [life, liberty
etc.], it is the right of the people to alter or to abolish it, and to institute a new
government, ... "
Also, it should be noted that though the American Constitution starts off with " We the
people of the United States "..................etc. There is no way for the people to amend the
constitution. Popular sovereignty in its more radical form was introduced later. Today,
Delaware is the only state that does not require popular approval for constitutional
amendments, but the federal constitution has still not been updated.
The initiative, legislative referendums and other democratic reforms were also
postponed for another century. When these issues emerged or reemerged, it was
because of a maturing United States and a maturing political structure. The drive
westward was being completed and the opportunities for voting with your feet
internally in the United States were reduced. Simultaneously the political structures of
the older states were setting, while the ordinary man's entrepreneurial spirit especially
in the West, was still not completely subdued.
It is to this entrepreneurial spirit we probably have to attribute the reform movement
born in the American Midwest at the turn of the century. Many of these people had
moved thousands of miles to get to a place that offered individual opportunity and
individual choice. They didn't need or want a corrupt or party ruled legislature to tell
them what to do. In 1898 the reform movement managed to get the initiative adopted
in South Dakota as the first state.
Direct legislation in the United States is still largely a western phenomenon. Mostlyit has been introduced within a few decades of the state's erection, and before its
political structure has become too entrenched. Though several efforts have been made
at the federal level, the entrenched interests of pressure groups and party machines
have so far successfully repulsed every effort. The initiative also has been fiercely
resisted in most of the eastern states.
In Canada, direct legislation can be found in the province of Alberta and at the local
level.
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Chapter 3. Popular sovereignty 19
3.4Summary
This chapter defines popular sovereignty as the people's power to:
Adopt its own basic law (constitution)
Propose and adopt amendments to the basic law (con-
stitution)
A basic law or constitution is a set of decision making rules fixing
the authority of each branch of government.
The practical manifestation of popular sovereignty is directdemocracy.
A semi-direct democracy employs both a representative legislature
and direct legislation. Throughout the rest of the text direct demo-cracy will be employed to describe the direct components of a semi-
direct legislative system.
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20 General Principles
4 Direct democracy
4.1 Proposed constitution's use of direct democracy
The proposed constitution employs all the traditional instruments of
direct democracy; the referendum, the initiative and the recall. The
initiative and the referendum is employed to secure popular sove-reignty and to foster competition between governmental units.
Equally important is a novel method for self-imposed taxation more
fully described in Chapter 8, page 53. The recall plays a more
subordinate role. For a description of the referendum, the initiativeand the recall see below.
Traditional instruments of direct democracy
Traditional direct legislation comes in three different varieties: theinitiative, the referendum and the recall. In modern times, the oldest
of these is the referendum, which often lead almost directly to the
later introduction of the initiative and the recall.
The referendumThe referendum is the peoples's power to approve or reject acts ofthe legislature. It comes in several forms depending on the nature of
the legislation to which it applies etc..
The referendum may be characterized along the following four dimensions:
e Form of legislation:
A) constitutions or constitutional amendments, B) ordinary statutes,and C) fiscal issues
Initiator
A) the citizens, B) the legislature itself or parts of it, C) the
president or D) the states.
e Advisory or binding
Voluntary or compulsory
This gives many possible combinations. However, some of these combinations are
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Chapter 4. Direct democracy 21
more common and more important than Others.
The term referendum when employed alone, usually means a binding compulsory
referendum on ordinary statutes. In the United States or Switzerland this term is also
used in the more specific sense of a citizen initiated referendum. A citizen initiatedreferendum is also called a petition referendum since it starts as a petition signed by
a group of citizens. However, as the number of signatures surpasses a certain
number, the petition ceases to be a petition in the ordinary sense and becomes instead
obligatory or compulsory on governmental authorities. If 50,000 Swiss voters petition
the government for a referendum on a federal statute, the government may not refuse
them. It is obligated by the Constitution to carry out the referendum.
Another common category in the United States and in the Swiss cantons, is the binding
compulsory fiscal referendum. In its typical form, the state (or canton) is obligated by
the state constitution to let the voters approve governmental debt increases.
Lastly, many countries require popular approval for constitutional amendments
(normally as a binding compulsory referendum).
The initiative
The initiative is the people's power to approve or reject legislation
initiated or proposed by someone other than the legislature.
The initiative may be characterized along the following dimensions:
Form of legislation:
A) constitutions or constitutional amendments, B) ordinary statutes,
and C) fiscal issues
Initiator
The citizens or the states.
Advisory or binding
Voluntary or compulsory
Direct or indirect
The usual form of the initiative is as a citizens ' initiative or as a voters'
initiative.
(The two terms have the same meaning). This is legislation (whether ordinary statutes
or fiscal issues) proposed by a group of citizens through a petition. As with the
petition referendum, once the petition itself has gathered enough voter support in the
form of signatures, it becomes both compulsory and binding.
If the initiative is direct, it is placed on the ballot at the next election. If the initiative
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22 General Principles
is indirect, the legislature gets a chance to enact the proposal. Only if it fails in the
legislature is it placed on the ballot.
At the federal level in Switzerland can be found only the constitutional initiative.
Many American states on the other hand, allow both the constitutional and the
legislative initiative.
The recallThe recall is the people's power to force a public official out of
office. It can be found at the state (and local) level in the U.S. and
at the cantonal (and local) level in Switzerland.
As for the other instruments of direct democracy it comes in several forms:
Application
A) all public officials whether elected or not, B) all public officials
except judges, C) all elected public officials including judges, and
D) all elected public officials except judges
Direct or indirect
The term "direct recall petition " means a petition that leads directly to a new election
Indirect petitions only lead to a new election if they are successful, i.e., if the official
in question is actually recalled at the polls.
Besides these distinctions, there are many other variations. Sometimes, the recall may
only be employed once during an official's term, in other cases the official gains 6
months' or 1 year's immunity against new recall attempts, and sometimes the defea
of the recall implies reelection for a new term.
4.2 Principal features of direct democracy
The principal features of direct democracy is its ability: A) to limit
the influence of pressure groups, B) to unbundle spending and legis-
lative decisions and C) to secure competition between governmental
units through proper arbitration.
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Chapter 4. Direct democracy 23
Limiting the influence of pressure groups
A principal feature of direct democracy is that it limits the influence
of numerically small but politically powerful pressure groups.
The direct vote of the citizens reduces the influence of specialinterest groups by automatically weighing the interest of the smaller
group against that of the majority. In order for a proposal to gain a
majority in a referendum it has to offer advantages to a much larger
cross-section of the population than ordinary legislative decisions. In
all likelihood it has to be a positive sum proposal, while legislation
influenced by smaller pressure groups in all likelihood will be
negative sum proposals where the cost to the majority are larger thanthe benefits accruing to the smaller pressure group due to costs as-
sociated with administrating and implementing the proposal itself.
Referendums and initiatives work by dramatically reducing the cost
(to the majority) of influencing government decisions. Politicalinfluence in most representative systems comes through extensive
long-term lobbying. Such lobbying is expensive in terms of time and
effort, and it only pays to engage in it if the potential pay-off issubstantial. Usually it will not be rationally cost effective forindividuals to oppose actively governmental programs as the cost of
opposition (in terms of time and effort) exceeds the benefits of lower
taxation. Direct democracy reduces the cost of opposition to the time
and effort required to put a ballot in the ballot-box; an enormous
improvement over having to lobby legislators directly.
Direct democracy and direct decision making costsOne objection to widespread use of direct democracy concerns its alleged high direct
costs. According to Kendall and Louw (Kendall, 1989, page 135), the Swiss Federalchancellery estimates the costs of a national initiative combined with a federal
counterproposal to about 1 Swiss franc per voter. Even when special ballots have to
be held to decide single issues, the costs are modest. In California such a special ballot
was held in 1973. It cost the state about USD 20 million, or about 80 cents (USD
0.80) per capita. (Walker, page 93).
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24 General Principles
Besides the direct costs incurred by government, comes the costs associated with
launching an initiative. In Switzerland this cost is estimated to at least one franc per
petition signature (Junker, page 122). In California initiative campaigns cost several
million dollars. In per capita terms however, these costs are still marginal, which is
why this method of making decisions is so effective. Even if we assume that the Swiss
spend a few million francs (everything included) on national issues every year, this has
to be compared with a Swiss federal budget of about 23 billion francs (1985) (Junker,
page 40).
The mismatch between the resources allocated by the government, and the input on
allocation allowed by each citizen may also be illustrated in another manner. While
one third to two thirds of the total resources of most developed countries are allocated
through the public sector, ordinary people are allowed decision making powers only
once or twice every four or five years. (I am here disregarding direct lobbying byindividual citizens as a practical alternative due to its high indirect costs.)
At the personal level, on the other hand, we are constantly incurring decision making
costs as we try to weigh the relative advantages of everything we buy from tooth paste
to motor vehicles and homes. Since the cost of each individual decision is much lower
in the private market sector, decision making costs including inconvenience and
allocated time is much higher for each dollar, franc or ecu each citizen spends as a
private individual than for dollars, francs or ecus spent via the public sector. Lower
private sector unit costs for decision making give many decisions and higher total
decision making costs. These higher total decision making costs are, however, morethan counterbalanced by the fact that funds are allocated according to each individual's
preferences. Thus there is ample room for governments to increase total direct
decision making costs, i.e. direct costs associated with ballots etc., and thus reduce
the unit cost of influencing individual governmental decision.
Anecdotal evidence; taxes
The most potent form of direct democracy, voters' initiatives, is today practiced
primarily in Switzerland and at the state level in the United States.
It is well known that Switzerland has one of the lowest tax rates in Europe. Amongthe European members of the Organization for Economic Cooperation and Develop-ment (OECD), for instance, only Portugal and Turkey have lower total taxation as a
percentage of GNP. Other European OECD members at a comparable level of income
and development with Switzerland have much higher levels of taxation. In fact,
comparable in this respect is not so easy to define as the Swiss also have the highest
incomes. The Swiss position can pretty much be summed up by saying that the Swiss
enjoy the highest income and the lowest taxes of Europe.
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Chapter 4. Direct democracy 25
Table II Swiss and European taxes
Country Total tax receipts
as % of GDP
Highest rate central
gmnt . income taxSwitzerland 32.5 13.2
United Kingdom 37.3 40.0
European Community
average
40.8 53.1
OECD average 38.4 49.0
Source: OECD in Figures June/July 1991
In America, the most famous of all initiatives was Proposition 13 in California in
1978. In spite of opposition from both political parties and most public officials, the
voters decided to cut property taxes by 57%, from USD 12 billion to USD 5 billion
and restrict increases in the future. Similar proposals were later enacted in otherAmerican states. (Kendall, Frances: Let the People Govern page 139)
The following table of state tax rates gives further evidence of the correlation between
democracy and taxes.
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26 General Principles
Table III Direct democracy and tax rates
Y = yes, state has provisions for legislative citizens' initiative
N = no, state does not have provisions for legislative citi-zens' initiative
Highest in-
dividual incometax rates
Highest sales tax
rates
Minnesota N
New York N
Connecticut NIowa N
West Virginia N
Connecticut N
Washington Y
Minnesota NMississippi N
New Jersey N
Pennsylvania N
Rhode Island N
No individual
income tax
No sales tax
Alaska Y
Florida Y
Nevada Y
South Dakota Y
Texas N
Washington Y
Wyoming Y
Alaska Y
Delaware N
Montana N
New Hampshire N
Oregon Y
Sources: tax rate information from Wilson, James Q., page
644
information about state initiatives from Butler,
David, pages 71-72
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Chapter 4. Direct democracy 27
Only one high tax state (Washington) has a provision for voters' initiative. Similarly,
six of seven states without an individual income tax are "initiative" states, while only
one (Texas) is not. The results for states without sales tax (5) are indecisive; with 2
"initiative" states and 3 non-initiative states. (24 U.S. states or territories have
implemented the initiative.)
Though more comprehensive statistics are less clear-cut, the above evidence taken
with the history of the American tax revolt in the late 1970s and early 1980s and the
Swiss experience, substantiates that popular initiatives lead to lower relative taxes and
less governmental interference.
Unbundling spending and legislative coalitions
By its very nature direct democracy and especially the initiative,
tends to unbundle decisions since it enables individual citizens tovote separately on each issue.
Representative political systems on the other hand tend to bundle
political decisions. As an individual you may approve a particular
candidate's views on taxes, but be opposed to the same candidate'sviews on abortion. In a representative system you have to take the
whole bundle. As an individual voter you are not able to separate the
two issues.
Bundling reduces the general welfare. Any system that enablesunbundling is thus a superior system. Direct democracy allowsunbundling and is thus superior to a purely representative system.
Parliamentia and Democratia , an exampleLet's suppose we have two identical states: Parliamentia and Democratia representingrespectively a parliamentary (representative) system and a semi-direct system. In both
countries a proposal to spend 100 million currency units (CU) on a national
tiddlywinks team (proposal A) and another proposal (proposal B) to spend 100 million
Semi-direct democracy: democracy encompassing both a rep-
resentative system (an elected legislature) and direct legislation by the
citizens. Semi-direct democracy can be found in Switzerland, both at
the federal and the local level, and in many American states.
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28 General Principles
currency units on bubble gum for school children is introduced.
ParliamentiaIn Parliamentia the leader of the Leftrightparty (the sponsor of bill A) confers withthe leader of the Rightleft party (the sponsor of bill B). The Leftrights hold 25parliamentary seats, while the Rightlefts hold 26 seats. Together they hold 51 of thetotal 100 seats. They quickly agree on a quid pro quo, if the Leftrights vote in favorofB, the Rightlefts in turn will vote in favor of A. This is done, and both measurespass though each counted separately is opposed by about 3/4 of the MPs.
Peter Individual, a parliamentarian of the Rightleft party briefly considers votingaccording to his convictions, but realizing the risk of being censored by or expelled
from the party (by that eliminating his chances of reelection to Parliament), he decides
to toe the party line.
Though the leader of the Leftrights could theoretically renege on his promises afterthe approval of A, he doesn't do so as he realizes that he needs a similar gentlemen's
agreement with the Rightlefts for the approval of proposal F, to be decided inParliament the following week. (Here he is prepared to offer his support for G).
In other words as the order will be reversed the following week he has to keep to his
part of the current agreement. (Besides he is a man of honor, at least as far as his
fellow MPs are concerned.)
DemocratiaIn Democratia , on the other hand, the proposals are to be decided directly by thepeople. The leaders of the Leftrights and the Rightlefts announce that they have madea deal. They urge their supporters to back both measures. However, since voting is
secret, neither leader can identify party members or citizens that don't heed their
admonitions, and they certainly cannot expel anyone from the country. Thus the
citizens are free to vote according to their individual convictions. The citizens are also
a little bit piqued about the way the politicians have taken it upon themselves to tell
the people what to do. Thus both measures are heavily defeated.
The following year, however, the leaders of the Leftrights and the Rightlefts decideto submit a single proposal ( A&B ), incorporating both measures, to the public. Bysimple calculation they figure such a joint proposal will be favored by 51% of the
voters.
Unfortunately, Truespeak , an independent citizens' action group sponsors a petitiondrive for a proposal to withhold funds from the tiddlywinks team (A-negative).
Another group, Peoplepower, sponsors a drive to withhold funds from the bubble gum
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Chapter 4. Direct democracy 29
project (B-negative).
At the polls, A&B receives 51 % of the votes, A-negative receives 75%, while B-negative receives 74% of the vote. Since conflicting measures are decided according
to the number of votes; the 100 million currency units support for the tiddlywinksteam (A) is neutralized by A -negative (51 % of the vote versus 75%), while the bubble
gum project is neutralized by B-negative (51% versus. 74%).
Conclusions
As the example shows, in representative assemblies, proposals may pass though they
do not represent majority opinions. This happens when the 25 representatives favoring
proposal A combine with the group of 26 representatives favoring proposal B to form
a majority of 51. This tendency is most obvious when it comes to appropriations, but
it also takes place when it comes to legislation. The net result is a steady increase in
the size of government despite the opposition of most voters and politicians.
Such alliances to push up spending or enact legislation are not possible however, when
decisions are returned to individual citizens. Since votes are secret, the leaders of
each faction have no means of enforcing agreements. There is no stick that prevents
individuals from voting according to their own convictions.
Popular votes as the arbiter between governmental units
As the proposed constitution creates a multi-governmental entity, it
has to provide a mechanism for resolving conflicts between subunits.I am proposing that this power to arbitrate between governmental
units is devolved directly on the people. This method of ultimate
arbitration is the only one that ensures competition between govern-
mental units in fulfilling the needs of ordinary citizens.
4.3 Summary
There are 3 forms of direct legislation:
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30 General Principles
The referendum,
often referred to as the people's veto power,
The initiative,
which gives the people the power to propose anenact legislation, and
The recall,
which gives the people the right to call a new election
The referendum and the initiative limit the influence of pressur
groups by dramatically reducing the cost of opposing narrowpressure groups. The referendum and initiative also improve th
allocation of resources by unbundling spending and legislativdecisions.
Popular votes also may be used as the ultimate arbiter in cases oconflict between representative bodies or branches of government.
Evidence from both the United States and Switzerland suggests tha
a greater say for the people may lead to lower taxes and a smalle
public sector.
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Chapter 5. The benefits of local control 31
5 The benefits of local control
5.1 Betterresults/Better resource utilizationMany of us intuitively feel that local control often produces better
results than central control. But, intuition is usually not considered
a valid argument in the political or scientific marketplace. In some
fields, studies support our intuition.
Education
In the United States, Americans have studied the effects of localfunding on graduation levels and SAT (Standard Aptitude Test)
scores. Test scores and graduation rates generally improve whenschools are locally funded instead of being funded by state or federalauthorities.
Many states with a greater local control also have more funding of
the school system. When people know where their taxes are going,
they may be willing to spend more. This could be part of theexplanation accounting for the difference in test scores and graduationrates. On the other hand, the study also shows that more moneyreaches the individual school in locally funded systems. Proportionallyless money is wasted in bureaucracy.
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Chapter 5. The benefits of local control 33
Number of public employees
The following table lists the average size (in population terms) of the
lowest governmental level, gemeinde in Switzerland and kommunein Scandinavia, compared with the total number of public sectoremployees as a percentage of total employment.
Table V Governmental devolution and effectiveness
Country Avg. population of
local authority
Public employees
as % of total
Sweden 28, 350 32.4
Denmark 18, 000 29.8
Norway 8, 900 23.7
Switzerland 2,100 11.2
Sources: Population figures: national statisticsPublic employees: OECD in figures, 1990
This table shows that larger more centralized local authorities go withmany public employees, and that smaller less centralized societies also
have fewer governmental employees.
These numbers by themselves, don't say anything about cause and
effect. But if it is true that there are large untapped economies ofscale in government, how come the Swedish government needs almostthree times as many employees as the Swiss?
The opposite tenet seems much more likely. Though, from a
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1
34 General Principles
theoretical point of view, large scale economies of scale may seem
to exist, they are not realizable in the real world. In other words, the
diseconomies of organization quickly overcome the economies of scaleof service provision.
Size and economic growth
The two previous examples are from the realm of local government,
but the same tendencies appear at the national level. According to a
new study by University of Pennsylvania economist Robert Summer,
("Actually, small-fry nations can do just fine," International Business
Week, October 1, 1990, page 12) the average economic growthamong large nations is no higher than the average among smallnations. Countries with small areas and high population densities,even grew a little bit faster than physically large countries. Incomes
in countries with either large populations or large areas tend to belower than per capita incomes in smaller countries.
Though small countries suffer disadvantages in market access and
access to raw materials, this is counterbalanced by the more importantconflicts between interest groups in the larger countries and theresulting inefficiency of government.
5.2 Devolution and citizen satisfaction, an example
What is meant by more satisfaction? In this context it means that more
people (i.e., a higher fraction or the total) get what they want. Letus suppose for instance, that we have two countries Centralia and
Devolutia with the same number of people. In both countries adecision about whether to abolish blue laws (i.e. allow open grocery
stores on Sundays) are to be decided by popular vote (referendum).
In Centralia the 400 voters are divided into 4 polling districts, while
in Devolutia the 400 voters are divided into 4 districts that are also,in this respect, self-governing states. The votes in each district are
as follows:
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Chapter 5. The benefits of local control 35
Table VI Voting district example
Area I
For 20
Against 80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Area H
For 19
Against 81. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Area III
For 80
Against 20
.
Area IV
For 80
Against 20
Total votes cast: 400Votes in favour: 199
Votes against: 201
The results for Devolutia and Centralia are shown on the next page.
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3 6 General Principles
Table VII Devolutia
State I
No Sunday
grocery stores
80 happy voters
State II
No Sunday
grocery stores
81 happy voters
State HI
Sunday
grocery stores80 happy voters
State IV
Sunday
grocery stores80 happy voters
321 Happy voters
Table VIII Centralia
No Sunday grocery stores
201 happy voters
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Chapter 5. The benefits of local control 37
In Centralia 201 voters are happy as the blue laws are not abolished.
In Devolutia , however, 321 people got their way. In state 1 and 2,blue laws were retained, while in state 3 and 4 they were not.
This simplistic example shows the fundamental power of devolution,it makes more people happy by allowing greater diversity.
(Adapted from Kendall, Frances and Louw , Leon: Let the PeopleGovern, pages 148-150).
5.3 Summary
This chapter has given examples of the benefits of local control in
education and in local government. There are two principal benefits
associated with devolution and local control:
Better resource utilization (operational efficiency)
Increased allocational efficiency (better fit between people'swants and what they get)
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38 General Principles
6 Devolved popular sovereignty
6.1 Introduction
The purpose of this chapter is to define devolved popular sovereigntyand show how devolved popular sovereignty can reconcile democracy(majority rule) and individual liberty.
Historical background
Individual liberty and Hobbes's social contractThe ultimate basis for political power is often thought to have been a real or implied
social contract. This social contract is an agreement that every individual entered with
every other individual to protect himself against the dangers of the state of nature.
In Hobbes's version the first and only task of political society is to name the sovereign(whether individual or group). The contract itself is permanent and irrevocable and
commits the individual to absolute obedience.
The main problem with this position is its lack of legitimacy with respect to thedescendants of the original contractors. Even if we assume that individuals can sign
away their liberty, is it legitimate to commit your descendants to slavery? Are we really
bound by our ancestors and have to accept meekly any government we happen to
inherit?
Most people would supply a resounding negative to the above question raised.
Individual liberty and Locke's li mited legislative authorityThe next stage in political theory is characterized by Lockean ideas. Locke maintained
that the legislative was limited to acts for the public good.
If the legislative exceeded these limits, the people were authorized to resist and if
necessary, overthrow the government and institute a new legislative. In a sense this
view solved the problem of self-inflicted slavery. The social contract was still thought
to be permanent and irrevocable, but the powers of government were limited, and
slavery certainly wouldn't qualify as an act for the public good.
However, two issues remain:
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Chapter 6. Devolved popular sovereignty 39
Although the contract is limited, is it acceptable and legitimate for one
generation to act for its descendants?
By whom or how is it to be determined whether the limited social contract
has been breached?
Individual liberty and Rousseauean majority ruleRousseau tried to get around the problems of the Lockean contract in several ways:
He postulated that individual members of society were formally to consent
to the existing institutions upon coming of age.
He required the inclusion of all citizens in the deliberations and votes that
led to expressions of the general will (i.e. enactment of new laws).
Thus Rousseau answered the second question above by instituting majority rule.
Rousseau ' s contract is neither permanent nor irrevocable: The general will may only
enact laws that are addressed to the common good of the society' s members, and that
extends the same rights or obligations to all citizens. If a law does not fulfill these
conditions, the social contract is violated and its obligation lapses.
However, Rousseau does not specify the practical consequences of a lapse of the social
contract, and the interpretation of what forms acceptable law is effectively left to the
majority. As there is no limitation on this majority rule, except those limitations that
the majority may elect to impose on itself and the vague guidelines mentioned above,
it is not hard to see how this system of government can lead to oppression of minorities
and individuals and suppression of individual liberty.
6.2 Devolved popular sovereignty and individual liberty
While traditional popular sovereignty gives the popular majority
ultimate power, traditional individual liberty claims inalienable rights.By definition; rights cannot be inalienable if they are at the mercy
of some ultimate power, and no power can be ultimate if it has to
respect inalienable rights. These principles can only be reconciled if
there is unanimity, - or if the decision can be made to apply only to
a unanimous group.
Any decision can be made to apply to a unanimous group if the
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40 General Principles
minority is allowed to withdraw or exempt itself from the decision.
This power to exempt oneself from decisions in effect makes the
minority's power more ultimate than the ultimate sovereign powerof the people (group) as a whole.
I have used the term devolved popular sovereignty to describe sucha system where popular sovereignty is ordered according to group
size, and where the smaller group's sovereign power is superior tothat of the larger group of which it is part.
Sovereignty and statehood
In its practical implementation, the concept of individual or group
sovereignty at the state level does not apply to each individualdecision. It works at the level of adherence to a particular set ofdecision making rules, a particular state or a particular set ofgovernmental institutions. (These terms are synonomous .)
As long as a an individual is a citizen of a particular state, he isbound to follow the laws of that state as determined by the majorityof its citizens or its legitimate government. However, at any time a
group of any size may declare itself a new state. Since the group itselfis a subset of the total, its sovereignty is superior to that of the state.
As the group declares itself a new state, each group member ceases
to be a citizen of his or her former state, and the relations between
the group and their former state or states take on the character of
relations between states. Within this framework, a state can be definedas any entity, whether consisting of a group or an individual, thatinteracts with its neighbors or its surroundings through a state ofnature.
Statehood and territory
Strictly speaking, it may be sufficient to define a state as any entity
that interacts with its neighbor through a state of nature. After all,
this definition is closely related to the ancient definition of a nation
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Chapter 6. Devolved popular sovereignty 41
as a group of people rather than as a territory. From a practical point
of view however, it is convenient that a state has a territory. The fact
is, today no state is recognized without territory. Territory andstatehood go together. This insistence on a one to one relationship
between territory and statehood is the major factor slowing orpreventing the erection of new states since the whole surface of the
Earth is claimed by one state or another.
This problem is resolved by allowing not only the withdrawal of
minds and bodies from individual states but also any property
belonging to those citizens wanting to erect a new state. As realproperty cannot be physically moved, withdrawal of real property hasto take place through a reclassification process. If a group of people
want to erect a new state, any real property owned by group membersis reclassified as the new state's territory.
This view also corrects the present anomaly where real property is different from other
property in that it somehow "belongs to" a particular state. Real property like any other
property, belongs to individuals, and if they decide to relocate themselves to another
state, they may take with them their real property just like other property.
It follows that most new states are likely to be very small states atthe outset. However, the important issue isn't whether the territory
is large or small, but whether the new state possesses an initialterritory at all. Many smaller states, including such diverse countries
as Iceland, Luxembourg, Singapore and Monaco, seem to be thriving.Such small states are obviously quite dependent on their neighbors,
but there seems to be no practical limit or cut-off point in terms ofstate size, population or territory, as long as they are able to interact
peacefully with other states.
If the new state is successful in providing the freedoms, liberties and
services that people seek, its territory is likely to expand rapidly as
more people in its immediate geographical vicinity switch allegiance.
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42 General Principles
Devolved popular sovereignty at the confederate level
At the confederate level devolved popular sovereignty means that
ultimate power, the power to propose and adopt constitutional
amendments, rests with the states, and that each state has the rightto secede.
As a matter of practicality I have also made state law superior to
confederate law. This broadens the scope of devolved powers to also
apply to "ordinary" decisions.
ConclusionsIn contrast with Rousseau and the other social contract theorists, the
proposed model makes democracy (and majority rule) immediatelycompatible with individual liberty. The protection of individual liberty
becomes an integral part of the model itself, rather than something
that has to be added at the end. Devolved popular sovereignty
transforms minority and individual rights (individual liberty) from a
static set of criteria into a dynamic process for making decisions.
In addition, the consistency of the principle from the large units of
nations to the level of the individual makes application relatively easy:
Each individual comes to life unbound by the previous promises of
his ancestors, and with all liberties still intact. As soon as his
individual or group sovereignty is exercised, it overrules that of state
government. Until such time, it lies dormant and he has to obey the
laws of the state of which we are part.
Within each state, the general will is determined by majority rule
based on popular sovereignty,
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Chapter 6. Devolved popular sovereignty 43
6.3 Practical issues related to the application ofdevolved popular sovereignty
Free speech, an example of application
What is said about protecting individual liberty and minorities, however made up,
applies to human rights in general. For instance, if an individual is denied the rightof free speech within a particular state, he may declare himself a new state and speak
freely as much as he wants. He has just exercised his superior sovereignty. From a
practical point of view it is not very likely that a single individual will erect a new state.
The overhead simply becomes too great as his entire interaction with the outside world
has to take place across state borders. If free speech or any other right is infringed in
any serious way it is far more likely that a large group or even a major part of the
country secedes. On the other hand, the certainty that this is a legitimate alternative
may restrain the majority sufficiently in its exercise of power to make secession un-necessary .
The individual as a state
It may seem ridiculous to allow a single individual the right to erect his own state. It
is very unlikely that such an action will take place, but as a matter of principle it is
important that it might take place. A comparison with free speech as practiced in the
Western World may be helpful. In most Western countries any individual may start
his own newspaper. The power of this principle is not related to the fact that most
newspapers are launched by individuals or that each individual is likely to launch his
own paper. Most papers these days are launched by major corporations, and there are
thousands of people to every paper. But the fact that free speech is individualistic
prevents the government from artificially restricting entry into that market. This in turn,
makes the market behave, almost, as if every individual was already part of it.
Individuals refrain from starting papers because their points of view are already
represented by one paper or another. The market is (almost) as diverse as it would have
been if every individual published his own paper.
Let's employ the viability argument on newspapers and see what happens. Let 's assume
that free speech is not a right that pertains to the individual. Governments may plausibly
argue that newspapers started by individual citizens are not viable and should not be
allowed. Any particular individual citizen's point of view, it might be argued, is notimportant as only organizations representing larger groups of people make a difference
anyhow. To make sure that these larger groups of people are legitimate, there probably
should be some kind of licensing system. - Md by the way, since everybody, or at
least those that represent important organizations and institutions, have access to all
papers, there is really "no need for" more than one or two papers in every major city.
This will avoid "unnecessary " duplication and "save" resources.
The system 1 have just outlined is a system and line of reasoning employed by the
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44 General Principles
former regimes in Eastern Europe, most authoritarian regimes and by most Western
governments with respect to the newer media of radio and television. It is a paradox
that the Eastern European regimes that disallowed newsmedia started by individual
citizens probably spawned more small newspapers, as underground carbon copied
newsletters, than any Western country where the news business is unrestricted.
Individual free speech is not important because every individual will take advantage
of it, but because, if it is recognized, it transforms society in such a way as to make
individual use less urgent.
In today's world many groups try to build their own states or separate from empires
or federations. What can possibly happen if we let them build their own states? What
if we allowed every individual the right to build his own state? Would we get very
many new states? At the beginning some, later, - a few. The act of allowing peacefulstate erection by indidivudals would transform politics and society so that it would no
longer be necessary for most minority groups to build a state of their own.
War and forcible annexation
As long as the principle of devolved sovereignty applies, human rights and individual
liberties are protected. However, with all the wars going on around the world, what
would prevent an existing state from simply annexing its newly erected neighbor by
force? There is no easy answer to this question. We can note as a matter of fact that
few if any democratic states forcibly annex their neighbors. There are at least 3 reasons
why force should not be used: A) The attacking state always runs the risk that theattacked state will defend itself by armed resistance, B) Condemnation may damage
or strain the attacker's relations with other states hurt its own people both in the short
term and in the long term, and C) The"policeman" whether in the form of the United
States, the United Nations or the proposed Confederation may arrive to sort things out.
The power of political theories lies in their general acceptance and legitimacy. In my
case they provide the necessary rules for determining when the confederate government
should intervene, and what the goal of intervention should be. No contemporary
organization have such clearly defined and in my view, honest and legitimate goals.
This lack of intellectual coherence shows up in indecisiveness and timidity, with large-scale human suffering as a result; just ask the kurds and the peoples of the former
Yugoslav and Soviet republics. A government that does not follow the proposed norms
also will be illegitimate and therefore more susceptible to overthrow. If it is a member
of a European Confederation it will be forced to comply, at gunpoint if necessary. If
adopted, the proposed system would also provide a guiding rod for UN intervention.
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Chapter 6. Devolved popular sovereignty 45
6.4 Summary
This chapter defines devolved popular sovereignty as the principle bywhich group sovereignty, as far as the group is concerned, overrules
the sovereignty of the collective whole.
At the most basic level, devolved popular sovereignty allows each
individual to erect his own state. In order to make a state viable, it
has to have its own territory. Since all land on Earth is alreadyclaimed, it is no use saying that people may withdraw from society
by going somewhere else.
This withdrawal from any particular state is made possible by
recognizing that property belongs to individuals and not states. Thenew state's territory is made up of the real estate owned by its
citizens.
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46 General Principles
7 Inter-governmental competition
7.1 Introduction
In relation to government, each citizen may be viewed both as a
shareholder and as a customer. As shareholders we elect a Board of
Directors (Representatives) to run the enterprise on our behalf, while
reserving important decisions for a direct vote by the citizens.
As the previous chapters have examined our role as governmentalshareholders, the purpose of this chapter is to examine constitutional
mechanisms in view of our role as governmental customers. We shallbe looking at constitutional mechanisms for introducing andpreserving competition between governmental units and governmentaldecision making models. Competition is not a goal in itself.Competitive markets optimize the use of resources so as to makeeverybody better off.
Vertical and horizontal competition, definitions
The proposed constitutional model supports two kinds of inter-governmental markets: a vertical competitive market betweengovernmental units at different levels, and a horizontal marketbetween units at the same level. Individual states would all be at the
same level, while the Confederation would be at a higher level. Whilefederal constitutions like the Treaty of Rome or the U.S. Constitution
inadvertently provide some competitive horizontal mechanisms, nocurrent constitution provides for vertical competition.
The importance of vertical competition
There are two fundamental reasons for emphasizing vertical
competition:
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Chapter 7. Inter-governmental competition 47
Since central government by definition is unique, the only
means of subjecting it to competition is by subjecting
it to verticalcompetition.Unlike horizontal competition, vertical competition provides
freedom of choice without forcing the citizens to movephysically, and it provides competition betweenexistingorganizations within a given geographical area.
Vertical competition is a powerful complement to horizontalcompetition. It is not a subsitute .
7.2 Vertical competition and indep endent actionIndependence of action and state powers
Independence of action, or lack therof, is the greatest obstacle tovertical competition.
There are two traditional ways of defining state powers; either by
enumerating the powers of the states, and leaving the residual to the
federal government, or by enumerating the powers of the federal
government and leaving the residual to the states. Usually each level,either the state level or the federal level, is left with a monopoly
regarding each subject matter. The degree of centralization is thendetermined by how extensive the monopoly powers of the central
government are compared with the monopoly powers of each stategovernment.
In order to create competitive pressures, however, authorities have
to overlap. Instead of fixing tasks at a certain level (statism), theproposed constitution creates a dynamic equilibrium where the
efficacy and prowess of each governmental unit decides the extent of
its activities. It is the citizens at the lower governmental level thateventually decides whether any particular task should be carried out
either at the confederate level, the regional level or at the state level.
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Each state may take over any confederate task, but the confederate
government has the option of appealing the decision directly to the
state citizens. The Confederation also may ask the citizens forpermission to assume responsibility for any task neglected by the
states. This process ensures the principle of subsidiarity, i.e. thecarrying out of tasks out at the lowest possible level. The easier it
is to move tasks between levels, the more competitive the market.
(For the particular mechanisms for moving tasks between levels see section 1.4, page
127 and section 3.2, page 132 and the corresponding commentaries pages 69 and 83.
The payment mechanisms for tasks requiring financial outlays is described in section
1.5, page 127 and commentaries page 70).
The proposed system also allows